Delegation, Unilateral Executive Authority and the Decline of Democracy

In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy.  While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature.  This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.

Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies.  According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control.  A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”

The description, which seems somewhat accurate, is deeply concerning because of the current polarization in the United States and the claims of executive authority by the Obama Administration.  To be clear, I’m not claiming that Obama is a dictator.  But Obama has made aggressive assertions of executive authority.  And most concerning, Obama has sought to justify these actions on the ground that the Congress has been too divided or hostile to his policies to pass legislation authorizing his actions.  While the two Bushes and Bill Clinton exercised significant executive authority, I do not remember their justifying their actions on the ground that the legislature was too divided to provide them with the authority, so they would act on their own.  As Lucas’s quote indicates, that is dangerous.

More problematically, it is not merely that a divided and ineffectual legislature can lead to assertions of executive authority.  It is also that the causation runs in the opposite direction as well — delegations and assertions of executive authority can lead to a divided and ineffectual legislature.  If the executive cannot be given delegated authority and can only act with specific legislature authority, then the legislature must compromise to get anything done.  This circumstance provides the incentive for the lawmakers, including the President with his veto authority, to compromise.  That is a good thing.

But if the President has received delegated authority or can otherwise act unilaterally, things work differently.  Then the President has little incentive to compromise with the legislature and instead will assert a far more extreme executive policy.  In fact, if the legislature seeks to work out a compromise, he is likely to veto the bill.  Thus, delegations will lead to a divided and ineffectual legislature — and to more extreme policy.

This is a troubling circumstance.  By itself, it has not led to dictatorship.  But it has led a less healthy republic.  And if other destabilizing circumstances arise — such as serious military challenges or economic crises — one can imagine Presidential authority being taken several steps farther in the direction of dictatorship.  This is a serious matter that should not be taken lightly.

Reader Discussion

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on June 21, 2016 at 10:14:54 am

Another case worth mentioning is when the legislative branch faces a crisis, and wants to be seen as "doing something" but can't agree on exactly what. It abdicates its role to compromise, and make difficult choices in the process, because many politicians on both sides want to avoid having a tough vote on their record, in order to not get primaried by a single-issue voting block.

We then get massive delegation to the Executive through enabling legislation such as that establishing the EPA, which is not specific enough, and therefore allows the agency to escalate its powers due to both their vagueness, and the invitation by the bureaucracy it creates to like-minded parties to sue and settle, thus allowing an agency expanding its powers because the court-supervised settlements oblige them to do so. What a wonderful way to escape the potential strictures of an ambiguous statute.

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on June 21, 2016 at 12:06:11 pm

Quite right:

The mere act of *delegating* gives the imprimatur to the Executive and encourages further encroachments upon (a willing) Legislative as it seeks to avoid any potentially adverse consequences for a difficult vote.

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on June 21, 2016 at 13:29:34 pm

I share this concern about an autonomous executive. But we’re complaining about the tail rather than about the dog:

1. In the interest of populism, the US gradually eliminated the power of many intermediating institutions (“middlemen”) such as statehouses that could select US senators, or electoral college electors that could exercise independent judgment in selecting the president, or political parties that function as more than just a cult of personality for whichever politician gets on the ballot via an open primary process.

2. Wealthy people, unconstrained by campaign finance laws, employ negative advertising to defeat opponents of their hand-picked candidates. This gives them the power to gerrymander congressional districts.

3. Congressmen in safe congressional districts learn that they have nothing to gain from political compromise—and nothing to lose from gridlock—and behave accordingly.

4. An executive that seeks compromise even when his own party holds all the levers of power—and gets punished for it—learns that he must govern in a different fashion.

That said, if any of you have served on a board of directors, you may recognize a certain dynamic: The board deadlocks. The executive becomes accustomed to acting without direction, and keeps acting until she does something so egregious as to cause the board to overcome its deadlock and take remedial action. Once that crisis is resolved, the board deadlocks again and we return to the status quo. It’s the “Better to Ask for Forgiveness Than Permission” model.

I surmise that the federal government is coming to operate on this model.

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on June 21, 2016 at 15:15:37 pm


A very good description of "what is." Talk of what "should be" or "was intended" is overcome by facts on the ground AND what I would term the "constitutional cowardice" of our elected representatives who, as you rightly point out, are secure in their safe districts, or are otherwise striving to attain that security by avoiding troublesome votes.

It is understandable that an Executive, or a CEO, determined to make a mark, would seek to exercise unitary power. Yet while it is understandable, it is nevertheless, an improper option. Yet absent the original mediating mechanisms, it is unclear how to alter this state of political governance.

Who has suggestions?

BTW: Re; #2 - Let us not forget that it is not only wealthy people but cash rich NGO's, foundations and labor unions who play a rather significant role in electoral communications.

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